Court Says
Defamation Limitations Period Began Running When Book Was Distributed, Not When
Plaintiff Read It

By
KENNETH OFGANG, Staff Writer/Appellate Courts

The
time in which a plaintiff injured by the republication of a defamatory
statement in a book may sue begins to run when the work is distributed, rather
than when the plaintiff first read it or learned of its contents, the
California Supreme Court unanimously ruled yesterday.

Div.
Three of this district’s Court of Appeal ruled in January 2001 that there were
triable issues as to whether Shively had timely filed her suit, which was based
on a statement attributed to Bozanich in Joseph Bosco’s book, “A Problem of
Evidence: How the Prosecution Freed O.J. Simpson.”

About
36,000 copies of the book in which Bozanich is quoted as calling Shively†a
“felony probationer” were distributed in the United
States and Canada,
more than 6,000 of those in California,
a publisher’s representative said.

Bozanich,
a county prosecutor since 1971, was promoted to assistant district attorney in
charge of special operations after Steve Cooley took over as district attorney
in December 2000.

Grand
Jury Witness

Shively
was a witness in the aborted grand jury probe of the murders of Nicole Brown
Simpson and Ronald Goldman. Shively
told the grand jury that she encountered O.J. Simpson crossing San
Vicente Boulevard in a white Bronco at
about 10:50 p.m.
the night of the killings, going south to north in the way one would expect if
he were leaving the home of his ex-wife on the way back to his home.

Shively
was ultimately declared an unreliable witness by chief Simpson prosecutor
Marcia Clark, after it was disclosed she had received $5,000 to tell her story
to the syndicated television program “Hard Copy.”

Shively
sued Bozanich, Los AngelesCounty,
Brian Patrick Clarke, Bosco, and publisher William Morrow & Company in 1997.
It was Clarke, an actor and Shively’s
former boyfriend, whose false allegation Bozanich allegedly repeated, according
to the book.

Clarke
is described in the book as having been married to the sister of the former
husband of Bozanich’s wife, Deputy District Attorney Pamela Ferrero Bozanich.

Dunn’s
Ruling

Los
Angeles Superior Court Judge Reginald Dunn, since retired, granted summary
judgment in favor of Bozanich and the county, which was named as a defendant
based on an allegation that Bozanich was acting within the scope of his
employment when he made the defamatory comment. Dunn also sustained a demurrer
by Clarke.

Those
rulings were based on the one-year statute of limitations. But the Div. Three
panel, in an opinion by Justice Walter Croskey, said there was a triable issue
as to whether Shively
discovered, or reasonably should have discovered, the basis for her lawsuit
more than a year before it was filed.

Shively
claimed she had no knowledge of the statement until she read the book in
December 1996, five months before she filed a tort claim with the county and 10
months before she filed suit.

But
the high court concluded that the Court of Appeal was wrong to allow Shively
to invoke the delayed-discovery rule so as to extend the time in which to sue
non-mass-media defendants such as Bozanich and Clarke for earlier statements of
which the plaintiff became aware solely as a result of republication in the
mass media.

George
cited the single-publication rule, which holds that the victim of defamation may
sue only once for the publication of a defamatory statement in a particular
book, newspaper, or the like.

The
rule, the chief justice explained, was a common-law response to early English
cases holding that each sale of a libelous book or newspaper constituted a
separate publication. The rule avoids “both
the multiplicity and the
staleness of claims” illustrated by an 1849 English case allowing suit based
upon defamatory material that the plaintiff saw when he purchased a copy of a
newspaper published 17 years earlier, George wrote.

The
delayed discovery rule has been applied to some defamation cases, for example
where the defamatory statement is made in a personnel file or other document to
which the plaintiff lacks access, the chief justice acknowledged. But it has
never been applied to a publication in a book or newspaper, he said.

Shively,
he wrote, “does not explain how the equitable considerations that may apply to
a defamation that is hidden from view might apply to a defamation that is made
public in a book.”

George
elaborated:

“Indeed,
courts uniformly have rejected
the application of the discovery rule to libels published in books, magazines,
and newspapers, pointing out that application of the discovery rule would
undermine the protection provided by the single-publication rule.”

The
case was argued in the Supreme Court by Gregory C. Hill of Ventura’s Hill &
Hill for Shively; Cindy S. Lee of Pasadena’s Franscell, Strickland, Roberts
& Lawrence for Bozanich and the county; and Kelli Sager of the Los Angeles
office of Davis Wright Tremaine for the California Newspaper Publishers
Association and other media organizations as amicus in support of the
defendants.